InternationalCriminal Law and Philosophy is the first anthology to bring together legal and philosophical theorists to examine the normative and conceptual foundations of internationalcriminal law. In particular, through these essays the international group of authors addresses questions of state sovereignty; of groups, rather than individuals, as perpetrators and victims of international crimes; of internationalcriminal law and the promotion of human rights and social justice; and of what comes after (...)internationalcriminal prosecutions, namely, punishment and reconciliation. Internationalcriminal law is still an emerging field, and as it continues to develop, the elucidation of clear, consistent theoretical groundings for its practices will be crucial. The questions raised and issues addressed by the essays in this volume will aid in this important endeavor. (shrink)

The Grammar of Criminal Law is a 3-volume work that addresses the field of international and comparative criminal law, with its primary focus on the issues of international concern, ranging from genocide, to domestic efforts to combat terrorism, to torture, and to other international crimes. The first volume is devoted to foundational issues. The Grammar of Criminal Law is unique in its systematic emphasis on the relationship between language and legal theory; there is no (...) comparable comparative study of legal language. Written in the spirit of Fletcher's classic Rethinking Criminal Law, this work is essential reading in the field of international and comparative law. (shrink)

Organ trafficking and trafficking in persons for the purpose of organ transplantation are recognized as significant international problems. Yet these forms of trafficking are largely left out of internationalcriminal law regimes and to some extent of domestic criminal law regimes as well. Trafficking of organs or persons for their organs does not come within the jurisdiction of the ICC, except in very special cases such as when conducted in a manner that conforms to the definitions (...) of genocide or crimes against humanity. Although the United States Code characterizes trafficking as a transnational crime with national implications, (22 U.S.C. Â§ 7101(b)(24) (2010)), trafficking is rarely prosecuted in domestic courts. It has thus functioned in practice largely as what might be judged a stateless offense, out of the purview of both international and national courts. Yet these forms of organ trafficking remain widespreadâand devastating to those who are its victims. In this article, we begin by describing what is known about the extent of organ trafficking and trafficking in persons for the purpose of removal of organs. We then critically evaluate how and why such trafficking has remained largely unaddressed by both international and domestic criminal law regimes. This state of affairs, we argue, presents a missed chance for developing the legitimacy of internationalcriminal law and an illustration of how far current international legal institutions remain from ideal justice. (shrink)

Current InternationalCriminal Law (‘ICL’) suffers from at least four theoretical shortcomings regarding its ‘concept and meaning’, ‘ius puniendi’ (supranational right to punish), ‘overall function’ and ‘purposes of punishment’ (For clarification of these basic questions, see Ambos in Oxf J Legal Stud 33:293–315, 2013b. Of course, there are many possible conceptualisations of the basic questions facing any theory of criminal law see, for example, Murphy in Columbia Law Rev 87:509–532, 1987. Yet, taking the perspective of ICL, I (...) would argue that these are the most important conceptual questions today.). These issues are intimately interrelated; in particular, any reflection upon the last two issues without having first clarified the ius puniendi would not make sense. As argued elsewhere (Ambos in Oxf J Legal Stud 33:293–315, 2013b), in an initial contribution towards a consistent theory of ICL, the ius puniendi can be inferred from a combination of the incipient supranationality of the value-based world order and the world citizens’ fundamental human rights predicated upon a Kantian concept of human dignity. On this basis, it is now possible to examine the overall function of ICL. Given the fact that ICL has not yet achieved the status of an autonomous discipline, the inquiry must start with a discussion of national theories of criminalisation. The article focuses on the two most important theories of criminalisation, namely the theories of protection of Rechtsgüter (‘legal goods’) and the prevention of harm (see infra second section). Next, it examines whether and how these national theories can be transferred to ICL (see infra third section). (shrink)

By what right, or under whose authority, do you try me? This is a common challenge raised by defendants standing trial in front of internationalcriminal courts or tribunals. The challenge comes from the fact that traditionally criminal law is justified as a response of the state to wrongdoing that has been identified by the state as a crime. Nevertheless, since the early 1990s we have seen the development of internationalcriminal tribunals that have the (...) authority to judge certain crimes. This article examines the moral foundation for the authority of international tribunals, arguing that it can be grounded on delegation of powers from the states with primary jurisdiction. The first part of the article examines whether there is any problem, as a matter of principle, in founding the courts’ jurisdictional authority on delegation of powers. It will argue that contrary to David Luban’s view, there is no inherent problem with states delegating their power to punish to other states or to international tribunals. Nevertheless, in making such a decision the ability of the court to provide fair process—a necessary requirement for the court’s ability to issue authoritative decisions—should be taken into account. The second part of the article takes the ICC as a case study and examines whether its jurisdiction can be grounded on delegation of powers. It will be shown that the court’s jurisdiction can indeed be founded on both direct and indirect delegation of jurisdiction from states with primary jurisdiction. This conclusion suggests that other international tribunals created by either multilateral treaties or by Security Council decisions may also be founded on similar grounds. (shrink)

This article reviews three books written by Larry May concerning the foundations of internationalcriminal law: Crimes Against Humanity: A Normative Account (2005), War Crimes and Just War (2007), and Aggression and Crimes Against Peace (2008).

The criminal law raises wonderfully thorny foundational questions. Some of these questions are conceptual: What is a plausible conception of crime ? What is a plausible conception of criminal law ? Some of these questions are genealogical: What are the historical and genealogical roots of the criminal law in a particular jurisdiction? Other questions are evaluative: What are the political and moral values on which a given conception of criminal law depends? What kind of rational reconstruction, (...) if any, could the criminal law be given? And, finally, still other questions are exploratory and normative: Should parts of existing criminal law be abandoned? What new topics in criminal law theory need to be addressed in our globalised, technologically savvy world? The contributors to Antony Duff and Stuart P. Green’s collection Philosophical Foundations of Criminal Law tackle these questions with zeal and independent spirit. They disagree markedly with each other about what the foundational questions are. And, they disagree about how those questions should be handled. This article charts their disagreements by situating the contributors within two taxonomies. The first groups them according to their approaches to the foundational questions; the second groups them according to their modes of theorising. This double taxonomy provides a useful frame within which to analyse these competing takes on the philosophically foundational work of criminal law theory. (shrink)

Philosophy, Theory and Criminal Law: A Review of Fran?ois Tanguay-Renaud and James Stribopoulos , Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational and InternationalCriminal Law.

The specialised vocabularies of lawyers, ethicists, and political scientists obscure the roots of many real disagreements. In this book, the distinguished American international lawyer Alfred Rubin provides a penetrating account of where these roots lie, and argues powerfully that disagreements which have existed for 3,000 years are unlikely to be resolved soon. Current attempts to make 'war crimes' or 'terrorism' criminal under international law seem doomed to fail for the same reasons that attempts failed in the early (...) nineteenth century to make piracy, war crimes, and the international traffic in slaves criminal under the law of nations. And for the same reasons, Professor Rubin argues, it is unlikely that an internationalcriminal court can be instituted today to enforce ethicists' versions of 'international law'. (shrink)

Five pre-eminent legal theorists tackle a range of fundamental questions on the nature of the philosophy of criminal law. Their essays explore the extent to which and the ways in which our systems of criminal law can be seen as rational and principled. The essays discuss some of the principles by which, it is often thought, a system of law should be structured, and they ask whether our own systems are genuinely principled or riven by basic contradictions, (...) reflecting deeper political and social conflicts. The volume as a whole shows how lively and exciting contemporary legal theory can be. (shrink)

This work provides, for the first time, a unified account of the theory of action presupposed by both British and American criminal law and its underlying morality. It defends the view that human actions are volitionally caused body movements. This theory illuminates three major problems in drafting and implementing criminal law--what the voluntary act requirement does and should require, what complex descriptions of actions prohibited by criminal codes both do and should require, and when the two actions (...) are the "same" for purposes of assessing whether multiple prosecutions and multiple punishments are warranted. The book contributes to the development of a coherent theory of action in philosophy. It provides a grounding in three of the most basic elements of criminal liability for legislators, judges, and the lawyers who argue to them. (shrink)

This is the first comprehensive handbook in the philosophy of criminal law. It contains seventeen original essays by leading thinkers in the field and covers the field's major topics including limits to criminalization, obscenity and hate speech, blackmail, the law of rape, attempts, accomplice liability, causation, responsibility, justification and excuse, duress, provocation and self-defense, insanity, punishment, the death penalty, mercy, and preventive detention and other alternatives to punishment. It will be an invaluable resource for scholars and students whose (...) research and studies concern philosophical issues in criminal law and criminal law theory. (shrink)

Crimes against humanity are supposed to have a collective dimension with respect both to their victims and their perpetrators. According to the orthodox view, these crimes can be committed by individuals against individuals, but only in the context of a widespread or systematic attack against the group to which the victims belong. In this paper I offer a new conception of crimes against humanity and a new justification for their international prosecution. This conception has important implications as to which (...) crimes can be justifiably prosecuted and punished by the international community. I contend that the scope of the area of internationalcriminal justice that deals with basic human rights violations should be wider than is currently acknowledged, in that it should include some individual violations of human rights, rather than only violations that have a collective dimension. (shrink)

Why should sovereign states obey international law? What compels them to owe allegiance to a higher set of rules when each country is its own law of the land? What is the basis of their obligations to each other? Conventional wisdom suggests that countries are too different from one another culturally to follow laws out of mere loyalty to each other or a set of shared moral values. Surely, the prevailing view holds, countries act simply out of self-interest, and (...) they eventually consent to norms of international law to regulate matters of common interest.In this groundbreaking book, Fernando Tesón goes against this prevailing thought by arguing, in the Kantian tradition, that a shared respect for individual human rights underpins not just the obligation countries feel to follow international law but also international laws themselves and even the very legitimacy of nations in the eyes of the international community. Tesón, both a lawyer and a philosopher, proposes that an overlapping respect for human rights has created a moral common ground among the countries of the world; and moreover, that such an outlook is the only one that is rationally defensible. It is this common set of values rather than self-interest that ultimately provides legitimacy to international law. Using the tools of moral philosophy, Tesón analyzes the concepts of sovereignty, intervention, and national interest; the contributions of social contact theory, game theory, and feminist theory; and the puzzles of self-determination and group rights.More than simply outlining his theory, Tesón goes on to give detailed examples of international laws, international institutions, and their human rights foundations, putting his ideas to work and addressing legal reforms called for by the theory. He suggests that treaties, for example, should be considered binding if, and only if, the consent to the treaty was given by a genuinely representative government, one that acts out of interest for the human rights of its citizens. Although the theoretical achievement of this book is to challenge received wisdom on the foundation of international law, the practical ambition is a call to reform the international legal system for the post–Cold War era, to substitute for the old order one that gives primacy to human dignity and freedom over state power. (shrink)

Charles Covell examines the jurisprudential aspects of Kant's international thought, with particular reference to the argument of the treatise Perpetual Peace (1795). The book begins with a general outline of Kant's moral and political philosophy. In the discussion of Perpetual Peace that follows, it is explained how Kant saw law as providing the basis for peace among men and states in the international sphere, and how, in his exposition of the elements of the law of peace, Kant (...) broke with the secular natural law tradition of Grotius, Hobbes, Wolff and Vattel in the view he took of the foundations of the law to make peace in the international sphere. In the conclusion to the book, Kant and his law of peace are considered in relation to the condition of contemporary international society. (shrink)

This essay investigates the possibilities and limits of interdisciplinary research into terrorism. It is shown that approaches that combine philosophy and international law are necessary, and when such an approach needs to be adopted. However, it is also important not to underestimate how much of a challenge is posed by the absence of agreement concerning the definition of terrorism, and also by the structural differences in the way the two disciplines address the problem and formulate the issues. Not (...) least, the discussion enables us to reach conclusions as to how terrorism research that combines philosophy and international law in particular, and interdisciplinary research into terrorism in general, can be meaningfully implemented. The individual aspects are clarified on the basis of the discussion surrounding justified measures for combating terrorism and the justification of the targeted killing of terrorists. (shrink)

The wrongness of rape -- Rationality and the rule of law in offences against the person -- Complicity and causality -- In defence of defences -- Justifications and reasons -- The gist of excuses -- Fletcher on offences and defences -- Provocation and pluralism -- The mark of responsibility -- The functions and justifications of criminal law and punishment -- Crime : in proportion and in perspective -- Reply to critics.

Larry Alexander and Peter Westen each critically examine different topics from my recent collection of essays, The Philosophy of Criminal Law. Alexander focuses on my “Rapes Without Rapists,” “Mistake of Law and Culpability,” and “Already Punished Enough.” Westen offers a more extended commentary on my “Transferred Intent.” I briefly reply to each critic in turn and try to extend the debates in new directions.

Focused on five prominent scholars of international law, and casting light on the related institutions which frequently engaged them, the present book provides insight into chief currents of international law during the last decades of the twentieth century. Spanning the gap, in some degree, between Anglo-American and continental approaches to international law, the volume consists of short intellectual portraits, combined with interviews, of selected specialists in international law. The interviews were conducted by the editor, Antonio Cassese, (...) between 1993 and 1995 though the present volume was published only last year. -/- Cassese, an Italian jurist and international lawyer, was Professor of International Law at the University of Florence (1975-2008) and specialized in public international law. Among other posts held, he was the first President of the InternationalCriminal Tribunal for the former Yugoslavia, the first President of the Special Tribunal for Lebanon and chaired the UN Inter-national Inquiry into Crimes in Darfur. He authored International Law (2005), a comprehensive commentary on the subject (which makes a fine companion volume to the present book). He was also editor in chief of the Oxford Companion to InternationalCriminal Justice (2009) and founded the Journal of InternationalCriminal Justice. His work has been credited as providing a chief impetus in the revival of internationalcriminal law from its post-Nuremberg hiatus. -/- Cassese seeks to bring out the central ideas associated with each of his five selected scholarly jurist-professors, focusing on international law and international relations; and he aims to place each of the five scholars within the context of their own intellectual and philosophical back-grounds - and their views of the development of the international community. The interviews were based on Cassese’s “basic questionnaire,” which is reproduced in the opening pages of the volume (pp.xvii-xix). Overall, the book provides an engaging, though intricate, perspective on contemporary developments in international law combined with discussion of its roots in the post-WWII era and in legal philosophies. (shrink)

Introduction: State-Centered and Individual-Centered TheoriesWhat is philosophy of criminal law? The seventeen essays in this book, as a whole, provide an excellent place to start in answering that question. Editors John Deigh and David Dolinko state that they put together this volume of “seventeen original essays by leading thinkers in the philosophy of the criminal law” in order to create “an authoritative handbook” representing “the state of current research on the major topics in the field that (...) arise from issues in the substantive criminal law” (p. v).So what is the field, and what are its major topics? There are many ways to organize this field, but I would start by observing that we can divide the world of philosophy of criminal law into two different types of theorizing: state-centered and individual-centered. The state-centered theory focuses on the proper limits of the state’s power to criminalize and punish, while the individual-centered theory focuses on questions of innocen .. (shrink)

Internationalcriminal tribunals are weak institutions, especially since they do not have their own police forces to execute arrest warrants. Understandably then, much of the existing literature has focused exclusively on pressure from major powers and on changing domestic politics to explain the apprehension of suspected war criminals. In contrast, this article turns attention back to the tribunals themselves. I propose three ways in which the activities of internationalcriminal tribunals impact compliance with arrest warrants: through (...) the selection of individuals to indict, demonstrated leniency on some suspects and outreach to domestic legal professionals. Using a duration model that accounts for sample selection and data collected on the InternationalCriminal Tribunal for the former Yugoslavia and the InternationalCriminal Tribunal for Rwanda, I test these theories alongside other existing explanations. I find that court activities can have an independent effect on the successful implementation of internationalcriminal law. (shrink)

This Major Reference series brings together a wide range of key international articles in law and legal theory. Many of these essays are not readily accessible, and their presentation in these volumes will provide a vital new resource for both research and teaching. Each volume is edited by leading international authorities who explain the significance and context of articles in an informative and complete introduction.

In A Moral Theory of Political Reconciliation, Colleen Murphy devotes a full chapter to arguing that internationalcriminal trials make significant contributions to political reconciliation within post-conflict and transitional societies. While she is right to claim that these trials serve an important function, I take issue with her with respect to what that important function is. Whereas Murphy focuses on the contributions internationalcriminal prosecutions might make to political reconciliation within the borders of transitional societies, I (...) claim instead that their primary function is to restore order at the international level and to dispense justice. The aims of justice are not always consistent with the aims of reconciliation. Moreover, several features of internationalcriminal trials should give us pause with respect even to how well, in fact, they manage to serve the ends of international justice. (shrink)

Current InternationalCriminal Law (ICL) suffers from at least four fairly serious theoretical shortcomings. First, as a starting point, the concept and meaning of ICL in its different variations must be clarified (‘the concept and meaning issue’). Second, the question of whether and how punitive power can exist at the supranational level without a sovereign (‘the ius puniendi issue’) must be answered in a satisfactory manner. Third, the overall function or purpose of ICL as opposed to national (...) class='Hi'>criminal law (‘the overall function issue’) must be more convincingly explained. Fourth, the purposes of punishment in ICL, as opposed to the traditional purposes discussed in national criminal law, must be elaborated (‘the purposes of punishment issue’). There is a partly vertical and partly horizontal relationship between these issues. It is, for example, of course impossible to reflect upon ius puniendi, overall function and purposes of punishment without having clarified the concept of ICL in the first place. Also, a treatment of overall function and purposes of punishment seems to be predicated on the justification of the ius puniendi. Indeed, the lack of a satisfactory answer to the ius puniendi issue is maybe the most important theoretical weakness of current ICL. This article therefore aims to demonstrate that a supranational ius puniendi can be inferred from a combination of the incipient supranationality of the world order (understood normatively as an order of values) and the concept of a world society composed of world citizens whose law—the ‘world citizen law’ (‘Weltbürgerrecht’)—is derived from universal, indivisible and interculturally recognized human rights predicated upon a Kantian concept of human dignity. The incipient world order and the world society are represented by the international community (to be understood as a community of values) which becomes the holder of the ius puniendi. (shrink)

According to the received view crimes like torture, rape, enslavement or enforced prostitution are domestic crimes if they are committed as isolated or sporadic events, but become crimes against humanity when they are committed as part of a âwidespread or systematic attackâ against a civilian population. Only in the latter case can these crimes be prosecuted by the international community. One of the most influential accounts of this idea is Larry Mayâs International Harm Principle, which states that crimes (...) against humanity are those that somehow âharm humanity.â I argue that this principle is unable to provide an adequate account of crimes against humanity. Moreover, I argue that the principle fails to account for the idea that crimes against humanity are necessarily group based. I conclude by suggesting that the problem with Mayâs account is that it relies on a harm-based conception of crime which is very popular, but ultimately mistaken. I submit that in order to develop an adequate theory of crimes against humanity we need to abandon the harm-based model and replace it with an alternative conception of crime and criminal law, one based on the notion of accountability. (shrink)

Offences and Defences is an outstanding collection of eleven of John Gardner's previously published papers in the philosophy of criminal law. I briefly examine his views on five central issues: his claims about basic responsibility and whether it should be construed as relational; his positions on agent neutrality; his arguments about whether moral and criminal wrongs are typically strict; his thoughts about the structure of defences, and, finally, what his account of rape reveals about the content of (...) the harm principle. (shrink)

This book is a collection consisting of an introduction and nine essays that explore foundational aspects of criminal law. As the introduction makes clear, the book is eclectic and the essays can be classified under three main headings. The first group of essays explores the political constitution of criminal law as part of the institutional structure of the state. The second group of essays investigates the question of the authority of criminal law and its potential to create (...) reasons for action. The third group deals with transnational and internationalcriminal law. The essays are primarily normative but they also contain historical and sociological discussions. The book will therefore be of interest to criminal lawyers, political and legal philosophers, political scientists and policy-makers. I will review separately some of the essays.Nicola Lacey’s essay, “What Constitutes Criminal Law?,” touches upon the fundamental question of criminal law: the question of legitimation. Lacey ap .. (shrink)